Delhi

StateCommission

A/406/2015

SH. SANJAY THAPAR - Complainant(s)

Versus

M/S UNITECH LTD. - Opp.Party(s)

17 Sep 2015

ORDER

THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Decision:17.09.2015

First Appeal- 406/2015

(Arising out of the order dated 01.07.2015 passed in complaint case no. 200/2014 by the District Forum-II, Qutub Institutional Area, New Delhi)

IN THE MATTER OF:-

Sh. Sanjay Thapar

S/o Late Sh. R.D. Thapar

R/o 591, Sector 19, Pocket-3,

Dwarka, New Delhi 

                                                                                        …..Appellant

Versus 

M/s Unitech Ltd.

6, Community Centre Saket,

New Delhi-110007                                                          …..Respondent

CORAM

(Justice Veena Birbal, President)

(O.P. Gupta, Member (Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment?

2.      To be referred to the reporter or not?

                                  

 (Justice Veena Birbal, President

 

1.             This is an appeal under section 15 of the Consumer Protection Act, 1986 (in short ‘The Act’) against the judgment dated 01.07.2015 passed by the Consumer Disputes Redressal Forum-II, Qutub Institutional Area, New Delhi in complaint case no. 200/2014 whereby the complaint is dismissed being not maintainable.

2.             Brief facts relevant for the disposal of this case are as under:

                Appellant herein was the complainant before the Ld. District Forum. He had filed a complaint under section 12 of the Act alleging therein that he had booked a shop bearing No. 00-01-019A, upper ground floor measuring approximately 479.06 sq. ft. (equivalent to 44.50 sq. mtrs.) of super area in the proposed complex named “Garden Galleria” Mohali of respondent/OP. The agreed price of the shop was Rs. 15,32,992/-. Out of which the appellant/complainant had paid Rs. 1,71,500/- as a booking amount and agreement was executed between the parties for sale of aforesaid shop on 12.08.2010. According to appellant/complainant he had made further payments as per schedule and in all he had paid Rs. 4,59,897/-. The appellant/complainant had alleged that despite making requisite payment he was not offered the possession of the shop in question. The appellant/complainant had alleged that he was asked to wait for about 4 years. Even after waiting for 4 years when nothing was heard the OP, the appellant/complainant visited the office of respondent/OP and asked for refund of money. But of no result. Ultimately, appellant had filed aforesaid complaint before the Ld. District Forum praying for refund of 4,59,897/- with interest @ 24% from the date of payment till refund, Rs. 3,00,000/- towards compensation and 1100/- towards litigation costs.

3.             Notice of the aforesaid complaint was issued to the respondent/OP. However, the respondent/OP did not appear and were proceeded ex-parte before the Ld. District Forum vide order dated 13.01.2015. In support of the case the respondent/complainant filed ex-parte evidence. After hearing the appellant/complainant the Ld. District Forum dismissed the complaint on the ground that the appellant/complainant had signed an agreement with respondent/OP for purchase of a shop for commercial purpose and not for the purpose of earning livelihood. It was further held that it was nowhere pleaded nor the appellant/complainant filed documents to show that he had agreed to purchase the shop for earning livelihood as such the transaction was commercial in nature. Accordingly the complaint was dismissed as not maintainable.

4.             Aggrieved with the aforesaid order present appeal is filed.

5.             Appellant has argued in person and has submitted that he had booked the shop for earning livelihood and had told the said fact to his Advocate who had drafted the complaint but somehow or other the same could not be pleaded in the complaint. It is contended that the shop was booked for earning livelihood as the appellant had to settle himself in life. It is contended that there is a bonafide mistake. It is contended that appellant/complainant is a ‘Consumer’ and is fully covered under explanation of section 2(d) of the Act. It is contended that there is a deficiency in service on the part of the respondent in not delivering the possession to him as per terms of agreement entered into between the parties.

6.             We have considered the submissions made. We have also gone through the material on record.

7.             The submission of the appellant is that shop was booked for earning his livelihood and the said information was given to the Advocate who had drafted the complaint. However, the lawyer did not plead the same in the complaint. Perusal of complaint shows that the same has not been drafted by a lawyer. The complaint is not filed through Advocate nor the same bears the signature of any advocate. The appellant/complainant has also not stated the name of lawyer who is alleged to have drafted the complaint. Even if the alleged fact was missed in the complaint as is alleged in that event the same could have been stated in the ex-parte evidence wherein appellant has given his own affidavit. There is no such averment in the affidavit also. It is also not his case that at the point of arguments appellant/complainant had brought the same to the notice of Ld District Forum. The plea taken is an afterthought. The District Forum has rightly dismissed the complaint as the same is not maintainable under the Act. The material on record shows that the appellant/complainant had booked the shop for commercial purposes and not for earning livelihood as is submitted.

8.             The complaint has been rightly dismissed by the Ld. District Forum. No illegality or perversity is seen in the impugned order. The appeal stands dismissed in limine.

9.             A copy of this order as per statutory requirement be sent to the appellant free of costs as per rules.

                File be consigned to record room.

(Justice Veena Birbal)

President

 

(O.P. Gupta)

Member (Judicial)

Rakeeba